A PRIVATE FUNDING ALLOWANCE IN CHILDREN PROCEEDINGS

Other parent to provide private funding

In MG & JG v JF [2015] EWHC 564 (Fam) – http://www.bailii.org/ew/cases/EWHC/Fam/2015/564.html after a judicial catalogue of complaints about lack of legal aid, Mostyn J made an order in proceedings under Children Act 1989 s 8 that a father should pay a funding allowance to the mother (and her former civil partner: called by him the child’s ‘mothers’) of a child. It is unlikely he had jurisdiction to make this order; and he does not seem fairly to have considered to what legal aid funding the ‘mothers’ might have been entitled.

To compound it all, it is not clear that Mostyn J properly considers the critical difference between the powers of the court to award costs (Senior Courts Act 1981 s 51(1)); and the limited powers of a judge to order one party to pay another’s funding for a case. At para [21] of the judgment he describes the difference between funding and costs as ‘a specious distinction without a difference, but [he went on] that is where we find ourselves, now that the fourth pillar of the welfare state has been largely demolished’ (the fourth pillar he referred to was legal aid; but that was eminently only for funding cases, and nothing to do with costs following the event of litigation).

Funding by another party: by statute only

Provision for funding of family proceedings hitherto has hitherto been by statute or derived from statutory provision, starting with Holman J’s A v A (Maintenance Pending Suit: Provision for Legal Fees) [2001] 1 FLR 377, which was approved by the Court of Appeal in Moses-Tiaga v Tiaga [2005] EWCA Civ 1013; [2006] 1 FLR 1074 with the critical rider (per Thorpe LJ at para [25]) that the provision of funding (Thorpe LJ’s term, be it noted: see italicised passage below) is linked to the statutory provision in Matrimonial Causes Act 1973 s 22:

[If] the applicant has no assets, can give no security for borrowings, cannot guarantee an outcome that would enable her to enter into an arrangement such as that which was upheld in Sears Tooth … then there is no source of funding of the litigation other than the approach to the court for a maintenance pending suit that will include a substantial element to fund the cost of the litigation. Obviously, in all these cases the dominant safeguard against injustice is the discretion of the trial judge and it will only be in cases that are demonstrated to be exceptional that the court will consider exercising the jurisdiction. But, I am in no doubt that in such exceptional cases, s. 22 of the Matrimonial Causes Act 1973 can in modern times be construed to extend that far.

Wilson LJ confirmed the jurisdiction in MCA 1973 in Currey v Currey (No 2) [2006] EWCA Civ 1338 when he said

[20] In my view the initial, overarching enquiry is into whether the applicant for a costs allowance can demonstrate that she cannot reasonably procure legal advice and representation by any other means. Thus, to the extent that she has assets, the applicant has to demonstrate that they cannot reasonably be deployed, whether directly or as the means of raising a loan, in funding legal services. Furthermore, not to forget the third of Thorpe L.J.’s three features, she has also to demonstrate that she cannot reasonably procure legal services by the offer of a charge upon ultimate capital recovery. I would add, fourthly, that the court needs also to be satisfied that there is no such public funding available to the applicant as would furnish her with legal advice and representation at a level of expertise apt to the proceedings, i.e. that the applicant does indeed in that regard fall within the unserved constituency referred to by Thorpe L.J. in the statement quoted at [1] above.

It will be seen that Wilson LJ added to the Moses-Tiaga list the requirement – see the italicised passage – to apply for legal aid. The Currey para [20] list has been treated as the basis for the statutory provision – Matrimonial Causes Act 1973 s 22ZA – which has replaced the court’s ability to provide for funding allowances under s 22. (Notably in Mostyn J cites only para [21] of Currey, so – it may be thought – crucially omits the requirement that a party show they cannot get legal aid: see his para [8] and [22].)

Facts of the case and application

The facts of MG & JG v JF [2015] EWHC 564 (Fam) were that MG and JG (45) formed a same-sex relationship and commenced cohabitation in a home they bought in the north of England. They in fact entered into a civil partnership on 14 July 2006; though in the course of the court proceedings they separated, and their civil partnership was dissolved. They had decided in 2005 that they wanted a child. JF was to be the father and it was agreed that JF would be named on the birth certificate and that JG would be a ‘legal step-parent’ with the idea that all three would have equal legal rights. On 24 April 2007 JFG was born by caesarean section. A legal agreement as to JG’s status was made on 23 May 2007, the day JFG’s birth was registered.

From 2007 to October 2012 JF enjoyed periodic contact with JFG monthly or bi-monthly. The contact was typically based at the home of the mothers, or at JF’s home, although JF was able to take his son out. From October 2012 serious difficulties arose over contact such that all parties agreed that the relationship between the mothers and the father broke down; though there is disagreement as to why. A psychologist recommended a detailed programme of supervised, facilitated contact to seek to restore the relationship between father and son, and many other therapeutic recommendations were also made. At the PHR all parties accepted these recommendations in principle. The final hearing was listed for hearing on 24 February 2015.

Mostyn J explained the means of the ‘mothers’ and why, but for the LASPOA 2012 changes, they would have been eligible for legal aid on the basis of their means. They were not eligible any longer, he said:

[4] On 1 April 2013 the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) came into force. It removed legal aid from private law children proceedings save in those exceptional cases where domestic violence is a central feature. In such a case the alleged victim, but not the alleged perpetrator, might receive legal aid. Otherwise, at a stroke, 63 years of state funding of cases such as this was swept away. Had that “reform” not taken place both MG and JG would have been entitled to legal aid, although in JG’s case subject to a contribution, estimated to be £1,004. With the state washing its hands of MG and JG they now look to JF to fund their representation.

Mostyn J therefore disposed of their funding applications in the following terms;

[34] In my judgment JF (the father) should pay 80% of each of the claims of MG and JG. Therefore he will pay MG £12,202 and JG £8,394. In addition he will pay 80% of all future professional costs in respect of therapeutic work and MG and JG will each pay 10% of such costs.

[35] Thus MG will have to find £3,050 and JG £2,098 and they will each have to find 10% of the future costs of therapeutic work. In my judgment they cannot reasonably or realistically be expected to find more. By contrast, I am satisfied that JF can find, without undue hardship, the share with which I have shouldered him.

[36] It could be said that it is grossly unfair that JF should have to pay now £20,596 plus 80% of the future therapeutic costs up to the IRH. But that is where the government has left him. It is a sorry state of affairs.

The child, JFG, was a party, it will be recalled, and had legal aid. Al aspect of expert evidence was therefore to be paid by him:

[37] This leaves the costs of expert evidence which will come into being between now and the IRH. The consent order provides for the educational psychologist to answer further questions and for the psychologist to file an addendum report. In my judgment these should be paid for by JFG and in my opinion such fees are a reasonable charge on his legal aid certificate, for the following reasons.

Jurisdiction to award funding

Hitherto funding is only available by statutory means: for example public funding (mostly via the dwindled legal aid budget) or through some other statutory means. MCA 1973 s 22ZA has specifically provided for legal services orders. Funding is possible under Children Act 1989 Sch 1 where a financial claim for a child can be pursued (in Dickson v Rennie [2014] EWHC 4306 (Fam) Holman J enabled a mother to be paid under CA 1989 Sch 1 to pursue a child support tribunal appeal).

Mostyn J states no statutory basis for his order. It is most doubtful that the courts have an inherent jurisdiction to award funding provision (otherwise every party in civil litigation would try to obtain funding from their opponent). Without a statute or a finding that he has an inherent jurisdiction it is difficult to see how a funding order can be made in this case.

However there is a prior point. Mostyn J specifically found that the mothers would have been financially eligible for legal aid. He went on to find that the mothers could not be expected:

[8] …to represent themselves having regard to the factual and legal issues at large. There would be a gross inequality of arms, and arguably a violation of their rights under Articles 6 and 8 of the European Convention on Human Rights and Article 47 of the European Charter of Fundamental Rights.

He was aware of the LASPOA 2012 s 10(3) ‘safety net’:

[13] … A safety net was included by section 10(3)(b) which gave the Director of the Legal Aid Agency the discretion to award legal aid where “it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be …a breach [of Convention or EU rights].” … Lord Chancellor issued guidance concerning section 10(3)(b) which stated that it should be confined to “rare” cases which are of the “highest priority”. But this guidance has been quashed as legally defective by Collins J in Gudanaviciene & Ors v Director of Legal Aid Casework & Anor [2014] EWHC 1840 (Admin). That decision is under appeal.

Gudanaviciene and exceptional case determination

Mostyn J was not aware that the Gudanaviciene had been successfully appealled against. The exceptional case determination (ECD) guidance he refers to remains quashed (R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622; and see http://www.familylaw.co.uk/news_and_comment/gudanaviciene-legal-aid-guidance-not-compatible-with-a-right-to-a-fair-trial# ).

In Gudanaviciene the Court of Appeal said of s 10(3) that it explains when an ECD should be made. An application becomes ‘exceptional’ not because of some rarity of grant, but because of the factors – Convention compliance – which makes s 10(3) applicable. As Gudanaviciene says bluntly: ‘Exceptionality is not a test’ (para [29]), it is merely a descriptor. Of s 10(3)(a) the court went on:

[31] … Section 10(3)(a) speaks of the situation where a failure to make civil legal services available would be a breach, not where there would be a real risk of a breach….

[32] In short, therefore, if the Director concludes that a denial of ECF would be a breach of an individual’s Convention or EU rights, he must make an exceptional funding determination. But as we shall see, the application of the ECtHR and CJEU case-law is not hard-edged. It requires an assessment of the likely shape of the proposed litigation and the individual’s ability to have effective access to justice in relation to it….
If the ‘Director’ – the LAA decision-maker – cannot decide if there would be a breach of Convention or EU rights s/he goes on to consider the application under s 10(3)(b):

[32] …. In making [a decision under s 10(3)(b) the decision-maker] should have regard to any risk that failure to make a determination would be a breach. These words mean exactly what they say. The greater he assesses the risk to be, the more likely it is that he will consider it to be appropriate to make a determination. That is because, if the risk eventuates, there will be a breach….

These would not normally be matters for Mostyn J to consider; but given his proposed decision as to funding, they were issues in the Currey list (see quote from Currey para [20] above) for the court to consider before an order could be made (always assuming that the court had a jurisdiction, which I doubt). Having found as Mostyn J did as to their difficulties of representation, surely he must go on to make an assessment of their chances under LASOA 2012 s 10(3) and the correct version of Gudanaviciene?

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